Criminal lawyers and the new ethics rules: among the

important changes in RPC 2010: prosecutors must now

advise the accused of his or her right to counsel, and lawyers
must now keep "information" (not just "secrets")
confidential.
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Many of the Illinois Rules of Professional Conduct have been reorganized or made easier to
understand in the 2010 version. Few are specific to criminal defense practitioners and only one
deals specifically with prosecutors. This article briefly outlines a few important changes that affect
criminal law practitioners.
Prosecutors and Rule 3.8: a few new obligations
Rule 3.8 deals with special responsibilities of a prosecutor. The revised rule reorganizes existing
duties such as disclosing exculpatory evidence and refraining from making extrajudicial statements
about pending cases.
Prosecutors must now make reasonable efforts to assure that an accused has been advised of the
right to counsel, the procedure for obtaining counsel, and a reasonable opportunity to obtain
counsel. An open question is whether this rule applies only after the initiation of charges (e.g., a
prosecutor reminds a forgetful judge to ask a defendant about hiring counsel) or prior to initiation
of charges (e.g., a police officer calls the prosecutor during questioning of an accused who
asks about the process to obtain counsel).
It seems clear, though, that a prosecutor's duty in this regard is limited to advice about the right to
counsel, because Rule 4.3 prohibits a lawyer from giving legal advice (except about the right
to counsel) to a person who is unrepresented.
Prosecutors are also now prohibited from seeking a waiver of "important pretrial rights" from an
unrepresented accused. Rule 3.8 only specifies the right to a preliminary hearing, so it is unclear
what other rights are implicated. Prosecutors are also prohibited, with narrow exceptions, from
subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about a past
or present client.
Defense counsel: new confidentiality, "candor"obligations
Confidentiality. Rule 1.6 deals with confidentiality of information. The former rule prohibited a
lawyer from using or revealing a "secret" (defined as information gained in the
professional relationship that the client requested to be held inviolate or for which the revealing
would be embarrassing or detrimental to the client) or a "confidence" (defined as information
protected by the attorney-client privilege). An open issue is the impact of revising the prohibition
from "using or revealing" to simply "revealing."
The major change to Rule 1.6, however, is that it broadens the scope of what is covered by
confidentiality rules. Illinois joins the majority of jurisdictions by defining client confidentiality

criminal law in terms of "information" received during an attorney-client relationship as opposed to

"secrets" and "confidences."
The commentary to Rule 1.6 states that confidentiality "applies not only to matters communicated in
confidence by the client but also to all information relating to the representation, whatever its
source" (emphasis added). Confidentiality does not apply if a client consents to disclosure, if
disclosure is impliedly authorized in carrying out the representation or if an exception
applies (minor changes were made).
The broadening of the confidentiality rules may have implications for criminal defense attorneys
who obtain, for instance, information about a client from sources other than a defendant. What if a
lawyer learns from a client's family that a defendant has a history of mental illness, or that his drug
money was used to post his bond, or that she left Illinois without permission?
If a defendant does not consent to such disclosures (as will sometime happen) and no exceptions
exist, the information must remain confidential--even though it might actually help the defendant
(e.g., the prosecutor might dismiss a case if a defendant is mentally ill).
Candor toward the tribunal. Rule 3.3 deals with candor toward the tribunal. In the past, a defense
attorney could not put on false evidence and was allowed to refuse to offer evidence that he or
she reasonably believed to be false. The dilemma under the old rule: how does a defense attorney
know when a defendant's testimony is true or false (e.g., often it is contrary to other evidence but
not unreasonable, while sometimes it contradicts all other evidence and violates common sense).
A lawyer continues to be prohibited from putting on false testimony. However, revised Rule 3.3 and
its commentary recognize the constitutional right of a defendant to testify in a criminal
proceeding by clarifying defense counsel's ethical obligation: "A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably
believes is false" (emphasis added).
Randall Rosenbaum is Champaign County Public Defender and outgoing chair of the Criminal
Justice Section Council.
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